Attorneys have an ethical obligation to investigate and present mitigating evidence to the sentencer.

1. ETHICALLY PRESENTING
MITIGATION EVIDENCE
Adam Tebrugge | Staff Attorney
AmericanCivil LibertiesUnion of Florida
P.O. Box 21142 Tampa, FL 33622-1142
Direct(813) 288-8390 | atebrugge@aclufl.org
BecauseFreedomCan't Protect Itself | www.aclufl.org

2. Thank you!
Florida Association of
Criminal Defense Lawyers
Northeast Chapter

3. Professional Organizations
• Lawyers who are members of professional
organizations have fewer ethical violations.
• County Bar Associations
• FACDL Statewide and local
• NACDL
• ABA

4. Preamble: Florida Rules Professional
Conduct
• In all professional functions a lawyer should
be
• competent,
• prompt, and
• diligent.

5. RULE 4-1.1 COMPETENCE
• A lawyer shall provide competent
representation to a client.
Competent representation requires
the legal knowledge, skill,
thoroughness, and preparation
reasonably necessary for the
representation.

6. Barriers to Competent Representation
• Excessive workload “A lawyer’s work load
must be controlled so that each matter can be
handled competently.”
• Case complexity
• Lack of Time and Resources

7. Legal knowledge and skill
• In determining whether a lawyer employs the
requisite knowledge and skill in a particular
matter, relevant factors include the relative
complexity and specialized nature of the matter,
the lawyer's general experience, the lawyer's
training and experience in the field in question,
the preparation and study the lawyer is able to
give the matter, and whether it is feasible to refer
the matter to, or associate or consult with, a
lawyer of established competence in the field in
question.

8. What is Required?
• A lawyer need not necessarily have special
training or prior experience to handle legal
problems of a type with which the lawyer is
unfamiliar.
• A lawyer can provide adequate representation in
a wholly novel field through necessary study.
• Competent representation can also be provided
through the association of a lawyer of established
competence in the field in question.

9. Thoroughness and preparation
Competent handling of a particular
matter includes inquiry into and
analysis of the factual and legal
elements of the problem, and use of
methods and procedures meeting the
standards of competent practitioners.
It also includes adequate preparation.

10. Dilligence
• What information does the sentencing decision
maker need?
• Were relevant witnesses identified and
interviewed?
• Were relevant experts consulted?
• Were all meaningful sentencing alternatives
explored and presented?
• GOAL: To present to the decision maker all
relevant mitigating evidence prior to sentencing
to ensure the best outcome for your client.

11. ETHICAL CONSEQUENCES
• RULE 3-4.2 RULES OF PROFESSIONAL
CONDUCT Violation of the Rules of
Professional Conduct as adopted by the rules
governing The Florida Bar is a cause for
discipline.

12. 4.4 LACK OF DILIGENCE
• The following sanctions are generally appropriate
in cases involving a failure to act with reasonable
diligence and promptness in representing a client:
• Disbarment is appropriate when:
• a lawyer knowingly fails to perform services for a
client and causes serious or potentially serious
injury to a client; or
• a lawyer engages in a pattern of neglect with
respect to client matters and causes serious or
potentially serious injury to a client.

13. “Timely Justice Act” 2013
• Prohibits counsel found by the court to have
twice provided constitutionally deficient
representation resulting in relief from taking
on new cases for a 5-year period.
• The court must report each instance of
constitutionally deficient representation to
The Florida Bar for discipline.

14. “Timely Justice Act” 2013
• 27.7045 Capital case proceedings; constitutionally deficient
representation.—Notwithstanding another provision of law, an
attorney employed by the state or appointed pursuant to s. 27.711
may not represent a person charged with a capital offense at trial or
on direct appeal or a person sentenced to death in a postconviction
proceeding if, in two separate instances, a court, in a capital
postconviction proceeding, determined that such attorney provided
constitutionally deficient representation and relief was granted as a
result. This prohibition on representation shall be for a period of 5
years, which commences at the time relief is granted after the
highest court having jurisdiction to review the deficient
representation determination has issued its final order affirming the
second such determination.History.—s. 7, ch. 2013-216.

15. LACK OF COMPETENCE
Disbarment is appropriate when a lawyer's
course of conduct demonstrates that the lawyer
does not understand the most fundamental
legal doctrines or procedures, and the lawyer's
conduct causes injury or potential injury to a
client.

16. RULE 4-3.4 FAIRNESS TO OPPOSING
PARTY AND COUNSEL
• A lawyer shall not:
• (a) unlawfully obstruct another party's access to
evidence . . . nor counsel or assist another person to do
any such act.
• (b) fabricate evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness
(c) knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion
that no valid obligation exists.
• (d) in pretrial procedure, make a frivolous discovery
request or intentionally fail to comply with a legally
proper discovery request by an opposing party.

17. Mitigation Definition
Circumstances that may be considered by a
court in determining culpability of a defendant
Mitigating circumstances do not justify or
excuse an offense but may reduce the severity of
a charge.

18. Mitigation
A mitigating circumstance is a fact about either
the offense or about the defendant which in
fairness or in mercy may be considered as
extenuating or reducing the degree of moral
culpability, or which justifies a sentence of less
than death, although it does not justify or
excuse the offense

19. Mitigation in Court
Seeks to eliminate excessive sentencing by
highlighting the life history of offenders—their
unique vulnerabilities, potential, and life
circumstances—that have shaped them as
individuals. Through extensive record collection,
in-depth interviews, and other techniques,
investigators are able to identify inter-
generational patterns ranging from mental
health issues to racial oppression that offer
critical context for a client’s actions.

20. The Challenge
“It is a challenge to shift the focus of defense
teams to the life history of the defendant rather
than thinking about a single legal issue from the
moment they get a case. It is a challenge to
educate judges about the import and value of
life history evidence. It is challenging to change
the root of why we punish so harshly by helping
people see the defendant as a person.”

21. ABA Guidelines--2008
SUPPLEMENTARY GUIDELINES FOR THE
MITIGATION FUNCTION OF DEFENSE TEAMS IN
DEATH PENALTY CASES
“The mitigation function is multifaceted and
multi-disciplinary, even though ultimate
responsibility for the investigation of such issues
rests irrevocably with counsel. “

22. Types of Mitigation
Mitigation evidence includes compassionate
factors stemming from the diverse frailties of
humankind, capacity for redemption, remorse,
vulnerabilities related to mental health,
explanations of patterns of behavior, negation of
aggravating evidence, positive acts or qualities,
responsible conduct in other areas of life (e.g.
employment, education, military service, as a
family member), any evidence bearing on the
degree of moral culpability.

23. Mitigation Specialists
. . . must be able to identify, locate and interview relevant
persons in a culturally competent manner that produces
confidential, relevant and reliable information.
They must be skilled interviewers who can recognize and elicit
information about mental health signs and symptoms, both
prodromal and acute, that may manifest over the client's
lifetime.
They must be able to establish rapport with witnesses, the
client, the client's family and significant others that will be
sufficient to overcome barriers those individuals may have
against the disclosure of sensitive information and to assist the
client with the emotional impact of such disclosures.
They must have the ability to advise counsel on appropriate
mental health and other expert assistance.

24. Mitigation Specialists Training
As opposed to fact investigators, mitigation specialists "are
generally trained in the social sciences, with college degrees in
social work or psychology," and "are adept at gathering
institutional records, interviewing lay and professional people,
and compiling case histories."
"Significantly, they are trained in uncovering family trauma
and screening for often subtle mental and psychological
disorders," and are "experienced in interpersonal
communication so they know how to develop trust and
rapport with even the most difficult or distrustful of
individuals."
Part of the mitigation specialist's job is to "conduct a
comprehensive life history investigation of the client and
identify all relevant mitigation issues."

25. Records
Mitigation specialists must possess the
knowledge and skills to obtain all relevant
records pertaining to the client and others. They
must understand the various methods and
mechanisms for requesting records and
obtaining the necessary waivers and releases,
and the commitment to pursue all means of
obtaining records.

26. Mitigation to Consider
Medical history; complete prenatal, pediatric and adult
health information; exposure to harmful substances in
utero and in the environment; substance abuse history;
mental health history; history of maltreatment and
neglect; trauma history; educational history;
employment and training history; military experience;
multi-generational family history, genetic disorders and
vulnerabilities, as well as multi-generational patterns of
behavior; prior adult and juvenile correctional
experience; religious, gender, sexual orientation,
ethnic, racial, cultural and community influences; socio-
economic, historical, and political factors.

27. Types of Expert Witnesses
Medical doctors, psychologists,
toxicologists, pharmacologists, social
workers and persons with specialized
knowledge of medical conditions, mental
illnesses and impairments; substance
abuse, physical, emotional and sexual
maltreatment, trauma and the effects of
such factors on the client’s development
and functioning.

28. More Experts
Anthropologists, sociologists and persons with
expertise in a particular race, culture, ethnicity,
religion.
Persons with specialized knowledge of specific
communities or expertise in the effect of
environments and neighborhoods upon their
inhabitants.
Persons with specialized knowledge of institutional
life, either generally or within a specific institution.

29. Lay Witnesses
The client’s friends, teachers, classmates, co-
workers, employers, and those who served in the
military with the client, as well as others who are
familiar with the client’s early and current
development and functioning, medical history,
environmental history, mental health history,
educational history, employment and training
history, military experience and religious, racial, and
cultural experiences and influences upon the client
or the client’s family;

30. More Lay Witnesses
Social service and treatment providers to the
client and the client’s family members, including
doctors, nurses, other medical staff, social
workers, and housing or welfare officials;
Witnesses familiar with the client’s prior juvenile
and criminal justice and correctional
experiences;

31. Paying for Mitigation Specialists
• Middelton v. State FSC Oct. 22, 2015
• Justice Pariente concurring:
“A trial court should not deny a request for a
mitigation specialist either based on the
misconception that these specialists are similar
to fact investigators or based on undue
emphasis on an additional expert "costing too
much.”

32. Paying for Mitigation Specialists
{continued}
(In Juvenile/Life resentencing cases) The court may
appoint a forensic social worker or similar expert for
purposes of conducting a forensic social evaluation
pursuant to s. 921.1401, F.S. The rate for the service
cannot exceed $75 per hour. Under these
circumstances, an investigator will also need to be
appointed (at the rate of $40 per hour) for purposes of
conducting the investigatory portion of the evaluation
such as gathering records and obtaining pertinent
information. The scope of the expert's services will be
limited to performing the forensic social work up of
the defendant.